Citation Nr: 1144649
Decision Date: 12/07/11 Archive Date: 12/14/11
DOCKET NO. 10-08 695 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUES
1. Whether new and material evidence has been submitted to reopen entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for bilateral hearing loss.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Riley, Counsel
INTRODUCTION
The Veteran served on active duty from October 1974 to September 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.
In October 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record.
FINDINGS OF FACT
1. The claim for service connection for bilateral hearing loss was initially denied in an unappealed November 1981 rating decision.
2. The evidence received since the November 1981 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim.
3. The Veteran's bilateral hearing loss is etiologically related to noise exposure during active duty service.
CONCLUSIONS OF LAW
1. New and material evidence has been received to reopen service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011).
2. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. § 3.303 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Claim to Reopen
The Veteran's claim for service connection for bilateral hearing loss was initially denied in a November 1981 rating decision. The RO found that there was no evidence of a current hearing loss disability for VA purposes. The Veteran did not appeal the November 1981 denial of the claim and the rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2011).
A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.
New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
The evidence received since the November 1981 denial of the claim includes the report of a December 2009 VA examination. The VA examination included an audiogram that demonstrated a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. This evidence is new as it was not previously considered and is also material as it relates to a previously unestablished fact-the presence of a current disability. Thus, new and material evidence has been received and reopening of the claim for entitlement to service connection for bilateral hearing loss is warranted.
Reopened Claim
The Veteran contends that service connection is warranted for hearing loss as it was incurred due to noise exposure during active duty service. In October 2011, he testified that he served as a clerk during active duty at Dobbins Air Force Base (AFB) in Georgia and worked in an airplane hangar next to a runway. The Veteran testified that he was surrounded by jet planes and exposed to noise trauma from their engines.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b).
The record establishes the presence of the first two elements of service connection-a current disability and an in-service injury. Upon VA audiological examination in December 2009, the Veteran was diagnosed with mid-to-high frequency sensorineural hearing loss in both ears in accordance with 38 C.F.R. § 3.385. In addition, service treatment records indicate a loss of hearing at the time of the Veteran's separation from active duty. The August 1974 enlistment examination included an audiogram that showed pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
0
5
NA
10
LEFT
15
5
10
NA
15
The September 1977 examination for separation also included an audiogram and demonstrated pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
10
10
10
LEFT
15
5
10
20
35
Thus, the Veteran's hearing was worse at separation when compared to the results of the enlistment examination.
With respect to the third element of service connection, a nexus between the current disability and the in-service injury, the Veteran has reported a continuity of symptoms since service. During the October 2011 hearing, he provided credible testimony that he had experienced hearing loss since active duty service. While the December 2009 VA examiner provided an opinion against the claim, the Board notes that the examiner did not dispute that the Veteran experienced some hearing loss at his separation from active duty and at the time of the 1981 claim for benefits. Rather, the examiner's negative opinion was based solely on the lack of a disability for VA purposes until years after service, i.e. the Veteran did not manifest hearing loss of sufficient severity for a grant of service connection. The Board finds that the Veteran's credible testimony coupled with the evidence of hearing loss after service and at the time of his original claim are sufficient to establish a nexus between service and the current hearing loss disability.
Finally, the Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to reopen and grant the claim.
ORDER
New and material evidence having been received, reopening of the claim for entitlement to service connection for hearing loss is granted.
Entitlement to service connection for hearing loss is granted.
____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs